The opinion given by the Supreme Court on the issue of the sale of ceded lands as reported by the New York Times on March 31st seems very straight forward and their decision was predictable given the narrowness of the question presented.
As it was earlier reported last October: If, as the “Question Presented” to the Supreme Court asks, “whether this symbolic [Apology] resolution strips Hawaii of its sovereign authority to sell, exchange, or transfer 1.2 million acres of state land– 29 percent of the total land area of the State and almost all the land owned by the State– unless and until it reaches a political settlement with native Hawaiians about the status of that land,” was really the narrow focus of the appeal, then the U.S. Supreme Court should simply ask that the Hawaii Supreme Court revisit the case without the Apology Resolution. If the “Question Presented” was really the focus of this appeal, the case would then be retried without the Apology Resolution, which based upon the previous documents (Acts 340, 354 and 359), the Hawaii Supreme Court decision would likely remain unchanged.
These three documents: Act 340 (1993), “An Act Relating to the Island of Kaho’olawe,” Act 354 (1993) and Act 359 (1993), “An Act Relating to Hawaiian Sovereignty,” were passed in the spring of 1993 by the Hawaii State Legislature, commemorating the 100th anniversary of the overthrow of the Kingdom of Hawaii. It was only after the State of Hawaii enacted these into law did the U.S. Congress in November 1993, pass a “Joint Resolution recounting the events [relating to the overthrow] in some detail and offer an apology to the native Hawaiian People,” thus the Apology Resolution.
On page 13 of the slip opinion, Justice Alito who delivered the opinion of the court, writes: “whereas” clauses like those in the Apology Resolution cannot bear the weight that the lower court placed on them. As we recently explained in a different context, “where the text of a clause itself indicates that it does not have operative effect, such as ‘whereas’ clauses in federal legislation . . . , a court has no license to make it do what it was not designed to do.”
Since the Newlands Resolution, like the Apology Resolution was a joint resolution, and both carry these grand declarations of the “whereas” clauses– could it then not be argued that the “Joint Resolution to provide for Annexing the Hawaiian Islands to the United States,” (Newlands Resolution) has the same operative effect as the Apology Resolution?
If this were to be argued in the Hawaii Supreme Court, how should the people be prepared to benefit or be injured from this analogy– to press the point– if the Apology Resolution is invalidated, then so too, might not the Newlands Resolution also be held to the same inoperative considerations of the law?
What this Supreme Court case seems to have ruled upon is that the political question of “ownership” over these crown lands is something that individual states need to decide upon. That there will be no federal recognition of the Apology Resolution as a “clear and manifest” statement on amending the Admissions Act is what appears most evident in this ruling, and that any change of the Admission Act is– and will likely be– a consequence determined by the state legislature, i.e., the people of Hawaii.
The ruling is certainly not a victory for the current administration of the State of Hawaii as the Wall Street Journal and the Los Angeles Times suggest, misrepresenting this trial as if Native Hawaiians were submitting the Apology Resolution as a restitution case with the Supreme Court. Rather, the opinion of the courts was more of an articulation of the principles of democracy as laid out by the 10th Amendment of the Constitution, whereby, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
At least the Honolulu Advertiser, was more on point when it wrote, “Yesterday’s decision was fairly narrow. In its 15-page unanimous ruling, the Supreme Court determined that the Apology Resolution signed by President Bill Clinton in 1993 did not change the state’s legal rights to manage the ceded lands in any way.”
Although this ruling does not strip the state of its authority to sell or transfer about 1.2 million acres of land, it also does not prevent OHA from challenging efforts by the State or individual plaintiffs from further attempts at chiseling away at Native Hawaiian entitlements. In other words, except for the Supreme Court’s gift of metaphorically diminishing the Newlands Resolution to little more than further “clouding” the legitimacy of “annexation,” this appeal maintains the ongoing debate over who really owns the crown lands of Hawai’i.
Unless it is Attorney General Mark Bennett’s strategy to walk blindly into this paradoxical dilemma, isn’t it possible that parties will keep the Newland’s Resolution out of this trial– or avoid another trial altogether? Depending on the Supreme Court’s formal judgement, this case may also just fade out with a whimper, at least until another trial initiated by Bill Burgess or the Grassroot Institute resurfaces to once again challenge Native Hawaiian entitlements.
“Admin” wrote
“Since the Newlands Resolution, like the Apology Resolution was a joint resolution, and both carry these grand declarations of the “whereas” clauses– could it then not be argued that the “Joint Resolution to provide for Annexing the Hawaiian Islands to the United States,” (Newlands Resolution) has the same operative effect as the Apology Resolution?”
Some misinformed defenders of the State of Hawaii’s right to sell ceded lands go so far as to claim that (all) Congressional resolutions are merely expressions of sentiment; and are not legally binding in the same way as a bill enacted into law would be legally binding.
But then the Hawaiian independence activists jump all over that claim by pointing out that the annexation of Hawaii to become a territory of the United States in 1898 was also done by means of a joint resolution; and therefore, if the apology resolution has no legal force, then neither does the annexation resolution.
This essay does not discuss broader issues, such as whether annexation can be done by means of a joint resolution (Yes! See references) or whether it must be done by means of a treaty (not necessarily), or whether the Republic of Hawaii had the authority to offer Hawaii to be annexed (Yes! See references). This essay is limited to the single issue whether a joint resolution does indeed have the force of law, and which portion of a resolution contains the legally binding consequences.
First let’s be clear. A joint resolution must be passed by at least a majority of the House and a majority of the Senate, and must then be signed by the President to become law. That’s exactly the same procedure used for a bill. Both bills and resolutions can be vetoed, and in both cases a veto requires a 2/3 majority of both chambers to be overridden.
Every joint resolution is indeed a law, just like every bill that passes both chambers and is signed by the President or vetoed with a veto override. The difference between a joint resolution and a bill is that every bill has real consequences, whereas some resolutions have merely sentiments but no real consequences. Resolutions having no real consequences are sometimes called resolutions of sentiment, such as congratulating a little league team on winning a world championship, acknowledging that Connecticut is known as the Nutmeg State — and the apology resolution. Such resolutions begin with a (sometimes lengthy) recitation of alleged historical fact or commonly-held opinion, and end with a short conclusion having no legal consequences but merely acknowledging, commemorating, praising, urging the President, etc.
Every resolution says: WHEREAS [describing Congress' motives, intentions, and opinions]; NOW THEREFORE [what is hereby enacted into law]. The “whereas” preamble is a recitation of history or purpose to explain why the conclusion that follows it is being enacted. The only part of a resolution that is enforceable law is the “therefore” or “now therefore” part.
The apology resolution is merely sentiment. Following a long list of false and distorted “whereas” opinions about history, the apology resolution’s only legally enforceable “now therefore”s are to “acknowledge historical significance”, “recognize and commend efforts”, “apologize”, “express commitment to acknowledge”, and “urge the President.” That’s it.
By contrast the Newlands annexation resolution (named after Congressman Francis G. Newlands who formally introduced it) says that whereas the Republic of Hawaii has offered to give its sovereignty and lands to the U.S., now therefore here are the things enacted into law: Hawaii’s sovereignty and lands are hereby annexed; the lands shall be held in trust solely to benefit the people of Hawaii; Hawaii’s treaties with other nations, and local laws, are replaced by U.S. treaties and laws; the U.S. hereby pays the national debt of Hawaii; money is appropriated to carry out annexation; etc.
The difference between the two resolutions will be quite obvious to anyone who takes the trouble to read them. That’s why the full text of both resolutions is provided below. The apology resolution was merely an expression of sentiment, to commemorate the 100th anniversary of the revolution that overthrew the Hawaiian monarchy; it has no real-world consequences except to express an opinion and suggest that consideration should be given to doing some things. The Newlands resolution for annexation very clearly made laws that produced major changes in the way Hawaii was governed.
REFERENCES
Regarding the details of Hawaii’s annexation, and whether it was legal to do it by means of a joint resolution rather than by treaty, and whether the Republic of Hawaii had the right under international law to speak on behalf of Hawaii and offer itself to be annexed, see:
http://tinyurl.com/4e5bw
For a general discussion of the ceded lands, see:
http://tinyurl.com/356xy
Regarding the ceded lands lawsuit recently decided by the U.S. Supreme Court: A webpage provides the full text of Judge Sabrina McKenna’s original decision, the Hawaii Supreme Court’s decision overturning Judge McKenna, the State of Hawaii brief requesting certiorari to the U.S. Supreme Court and the OHA brief opposing certiorari, the State’s brief on the merits after certiorari was granted, seven amicus briefs supporting the State’s position, and news reports and commentaries regarding this case from 2001 to now. OHA’s brief on the merits, and all amicus briefs supporting OHA’s position, and the final decision by the U.s. Supreme Court. See:
http://tinyurl.com/49sx9j
The Newlands Resolution of annexation, and the apology resolution, are both fairly short documents. They are copied in full below, so readers can compare how they are written and what are their legally binding “now therefore” consequences.
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Newlands (annexation) resolution
Source:
http://www.economicexpert.com/a/Newlands:Resolution.htm
Whereas the Government of the Republic of Hawaii having, in due form, signified its consent, in the manner provided by its constitution, to cede absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies, and also to cede and transfer to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining;
Therefore
Resolved by the Senate and House of Representatives of the United States of America in Congress Assembled, That said cession is accepted, ratified, and confirmed, and that the said Hawaiian Islands and their dependencies be, and they are hereby, annexed as a part of the territory of the United States and are subject to the sovereign dominion thereof, and that all and singular the property and rights hereinbefore mentioned are vested in the United States of America.
The existing laws of the United States relative to public lands shall not apply to such lands in the Hawaiian Islands; but the Congress of the United States shall enact special laws for their management and disposition: Provided, That all revenue from or proceeds of the same, except as regards such part thereof as may be used or occupied for the civil, military, or naval purposes of the United States, or may be assigned for the use of the local government, shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes.
Until Congress shall provide for the government of such islands all the civil, judicial, and military powers exercised by the officers of the existing government in said islands shall be vested in such person or persons and shall be exercised in such manner as the President of the United States shall direct; and the President shall have the power to remove said officers and fill the vacancies so occasioned.
The existing treaties of the Hawaiian Islands with foreign nations shall forthwith cease and determine, being replaced by such treaties as may exist, or as may be hereafter concluded, between the United States and such foreign nations. The municipal legislation of the Hawaiian Islands, not enacted for the fulfillment of the treaties so extinguished, and not inconsistent with this joint resolution nor contrary to the Constitution of the United States nor to any existing treaty of the United States, shall remain in force until the Congress of the United States shall otherwise determine.
Until legislation shall be enacted extending the United States customs laws and regulations to the Hawaiian Islands the existing customs relations of the Hawaiian Islands with the United States and other countries shall remain unchanged.
The public debt of the Republic of Hawaii, lawfully existing at the date of the passage of this joint resolution, including the amounts due to depositors in the Hawaiian Postal Savings Bank, is hereby assumed by the Government of the United States; but the liability of the United States in this regard shall in no case exceed four million dollars. So long, however, as the existing Government and the present commercial relations of the Hawaiian Islands are continued as hereinbefore provided said Government shall continue to pay the interest on said debt.
There shall be no further immigration of Chinese into the Hawaiian Islands, except upon such conditions as are now or may hereafter be allowed by the laws of the United States; no Chinese, by reason of anything herein contained, shall be allowed to enter the United States from the Hawaiian Islands.
The President shall appoint five commissioners, at least two of whom shall be residents of the Hawaiian Islands, who shall, as soon as reasonably practicable, recommend to Congress such legislation concerning the Hawaiian Islands as they shall deem necessary or proper.
That the commissioners hereinbefore provided for shall be appointed by the President, by and with the advice and consent of the Senate.
That the sum of one hundred thousand dollars, or so much thereof as may be necessary; is hereby appropriated, out of any money in the Treasury not otherwise appropriated, and to be immediately available, to be expended at the discretion of the President of the United States of America, for the purpose of carrying this joint resolution into effect.
Signed by, Serexo E. Payne (Speaker of the House of Representatives Pro Tempore), Garrett A. Hobart (Vice President of the United States and President of the Senate), William McKinley (President of the United States).
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Apology resolution:
A point-by-point rebuttal of the apology resolution by Constitutional law attorney Bruce Fein can be found in his monograph “Hawaii Divided Against Itself Cannot Stand.”
pdf version:
http://tinyurl.com/7d6xq
Congressional Record version in 3 installments:
http://tinyurl.com/ajz9s
Source for text of the apology resolution:
http://www.hawaii-nation.org/publawall.html
Text of the apology resolution:
103d Congress Joint Resolution 19
Nov. 23, 1993
To acknowledge the 100th anniversary of the January 17, 1893 overthrow of the Kingdom of Hawaii, and to offer an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawaii.
Whereas, prior to the arrival of the first Europeans in 1778, the Native Hawaiian people lived in a highly organized, self-sufficient, subsistent social system based on communal land tenure with a sophisticated language, culture, and religion;
Whereas, a unified monarchical government of the Hawaiian Islands was established in 1810 under Kamehameha I, the first King of Hawaii;
Whereas, from 1826 until 1893, the United States recognized the independence of the Kingdom of Hawaii, extended full and complete diplomatic recognition to the Hawaiian Government, and entered into treaties and conventions with the Hawaiian monarchs to govern commerce and navigation in 1826, 1842, 1849, 1875, and 1887;
Whereas, the Congregational Church (now known as the United Church of Christ), through its American Board of Commissioners for Foreign Missions, sponsored and sent more than 100 missionaries to the Kingdom of Hawaii between 1820 and 1850;
Whereas, on January 14, 1893, John L. Stevens (hereafter referred to in this Resolution as the “United States Minister”), the United States Minister assigned to the sovereign and independent Kingdom of Hawaii conspired with a small group of non-Hawaiian residents of the Kingdom of Hawaii, including citizens of the United States, to overthrow the indigenous and lawful Government of Hawaii;
Whereas, in pursuance of the conspiracy to overthrow the Government of Hawaii, the United States Minister and the naval representatives of the United States caused armed naval forces of the United States to invade the sovereign Hawaiian nation on January 16, 1893, and to position themselves near the Hawaiian Government buildings and the Iolani Palace to intimidate Queen Liliuokalani and her Government;
Whereas, on the afternoon of January 17,1893, a Committee of Safety that represented the American and European sugar planters, descendants of missionaries, and financiers deposed the Hawaiian monarchy and proclaimed the establishment of a Provisional Government;
Whereas, the United States Minister thereupon extended diplomatic recognition to the Provisional Government that was formed by the conspirators without the consent of the Native Hawaiian people or the lawful Government of Hawaii and in violation of treaties between the two nations and of international law;
Whereas, soon thereafter, when informed of the risk of bloodshed with resistance, Queen Liliuokalani issued the following statement yielding her authority to the United States Government rather than to the Provisional Government:
“I Liliuokalani, by the Grace of God and under the Constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the Constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a Provisional Government of and for this Kingdom.
“That I yield to the superior force of the United States of America whose Minister Plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed a Honolulu and declared that he would support the Provisional Government.
“Now to avoid any collision of armed forces, and perhaps the loss of life, I do this under protest and impelled by said force yield my authority until such time as the Government of the United States shall, upon facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the Constitutional Sovereign of the Hawaiian Islands.”.
Done at Honolulu this 17th day of January, A.D. 1893.;
Whereas, without the active support and intervention by the United States diplomatic and military representatives, the insurrection against the Government of Queen Liliuokalani would have failed for lack of popular support and insufficient arms;
Whereas, on February 1, 1893, the United States Minister raised the American flag and proclaimed Hawaii to be a protectorate of the United States;
Whereas, the report of a Presidentially established investigation conducted by former Congressman James Blount into the events surrounding the insurrection and overthrow of January 17, 1893, concluded that the United States diplomatic and military representatives had abused their authority and were responsible for the change in government;
Whereas, as a result of this investigation, the United States Minister to Hawaii was recalled from his diplomatic post and the military commander of the United States armed forces stationed in Hawaii was disciplined and forced to resign his commission;
Whereas, in a message to Congress on December 18, 1893, President Grover Cleveland reported fully and accurately on the illegal acts of the conspirators, described such acts as an “act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress”, and acknowledged that by such acts the government of a peaceful and friendly people was overthrown;
Whereas, President Cleveland further concluded that a “substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured people requires we should endeavor to repair” and called for the restoration of the Hawaiian monarchy;
Whereas, the Provisional Government protested President Cleveland’s call for the restoration of the monarchy and continued to hold state power and pursue annexation to the United States;
Whereas, the Provisional Government successfully lobbied the Committee on Foreign Relations of the Senate (hereafter referred to in this Resolution as the “Committee”) to conduct a new investigation into the events surrounding the overthrow of the monarchy;
Whereas, the Committee and its chairman, Senator John Morgan, conducted hearings in Washington, D.C., from December 27,1893, through February 26, 1894, in which members of the Provisional Government justified and condoned the actions of the United States Minister and recommended annexation of Hawaii;
Whereas, although the Provisional Government was able to obscure the role of the United States in the illegal overthrow of the Hawaiian monarchy, it was unable to rally the support from two-thirds of the Senate needed to ratify a treaty of annexation;
Whereas, on July 4, 1894, the Provisional Government declared itself to be the Republic of Hawaii;
Whereas, on January 24, 1895, while imprisoned in Iolani Palace, Queen Liliuokalani was forced by representatives of the Republic of Hawaii to officially abdicate her throne;
Whereas, in the 1896 United States Presidential election, William McKinley replaced Grover Cleveland;
Whereas, on July 7, 1898, as a consequence of the Spanish-American War, President McKinley signed the Newlands Joint Resolution that provided for the annexation of Hawaii;
Whereas, through the Newlands Resolution, the self-declared Republic of Hawaii ceded sovereignty over the Hawaiian Islands to the United States;
Whereas, the Republic of Hawaii also ceded 1,800,000 acres of crown, government and public lands of the Kingdom of Hawaii, without the consent of or compensation to the Native Hawaiian people of Hawaii or their sovereign government;
Whereas, the Congress, through the Newlands Resolution, ratified the cession, annexed Hawaii as part of the United States, and vested title to the lands in Hawaii in the United States;
Whereas, the Newlands Resolution also specified that treaties existing between Hawaii and foreign nations were to immediately cease and be replaced by United States treaties with such nations;
Whereas, the Newlands Resolution effected the transaction between the Republic of Hawaii and the United States Government;
Whereas, the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum;
Whereas, on April 30, 1900, President McKinley signed the Organic Act that provided a government for the territory of Hawaii and defined the political structure and powers of the newly established Territorial Government and its relationship to the United States;
Whereas, on August 21,1959, Hawaii became the 50th State of the United States;
Whereas, the health and well-being of the Native Hawaiian people is intrinsically tied to their deep feelings and attachment to the land;
Whereas, the long-range economic and social changes in Hawaii over the nineteenth and early twentieth centuries have been devastating to the population and to the health and well-being of the Hawaiian people;
Whereas, the Native Hawaiian people are determined to preserve, develop and transmit to future generations their ancestral territory, and their cultural identity in accordance with their own spiritual and traditional beliefs, customs, practices, language, and social institutions;
Whereas, in order to promote racial harmony and cultural understanding, the Legislature of the State of Hawaii has determined that the year 1993, should serve Hawaii as a year of special reflection on the rights and dignities of the Native Hawaiians in the Hawaiian and the American societies;
Whereas, the Eighteenth General Synod of the United Church of Christ in recognition of the denomination’s historical complicity in the illegal overthrow of the Kingdom of Hawaii in 1893 directed the Office of the President of the United Church of Christ to offer a public apology to the Native Hawaiian people and to initiate the process of reconciliation between the United Church of Christ and the Native Hawaiians; and
Whereas, it is proper and timely for the Congress on the occasion of the impending one hundredth anniversary of the event, to acknowledge the historic significance of the illegal overthrow of the Kingdom of Hawaii, to express its deep regret to the Native Hawaiian people, and to support the reconciliation efforts of the State of Hawaii and the United Church of Christ with Native Hawaiians;
Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. ACKNOWLEDGMENT AND APOLOGY.
The Congress -
(1) on the occasion of the 100th anniversary of the illegal overthrow of the Kingdom of Hawaii on January 17, 1893, acknowledges the historical significance of this event which resulted in the suppression of the inherent sovereignty of the Native Hawaiian people;
(2) recognizes and commends efforts of reconciliation initiated by the State of Hawaii and the United Church of Christ with Native Hawaiians;
(3) apologizes to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii on January 17, 1893 with the participation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination;
(4) expresses its commitment to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii, in order to provide a proper foundation for reconciliation between the United States and the Native Hawaiian people; and
(5) urges the President of the United States to also acknowledge the ramifications of the overthrow of the Kingdom of Hawaii and to support reconciliation efforts between the United States and the Native Hawaiian people.
SEC. 2. DEFINITIONS.
As used in this Joint Resolution, the term “Native Hawaiians” means any individual who is a descendent of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii.
SEC. 3. DISCLAIMER.
Nothing in this Joint Resolution is intended to serve as a settlement of any claims against the United States.
As mentioned in the previous comment, the Apology Resolution was 90% whereas, and 10% resolved. The Newlands Resolution was 10% whereas, and 90% resolved.
Only the resolved stuff counts. Simple, basic legislative construction stuff that the Supreme Court of Hawaii completely failed to recognize. The people who actually used PL103-150 in support of operative law should be fired, or should resign. It’s terribly embarrassing to have justices who don’t even know how to read the law.
Kenconklin & Jere, Kenconklin & Jere, Time will tell how you will fare in the Hawaiian Islands after the State of Hawaii’s lease expires in these Islands. You best be talking Aloha to the Natives of these Islands, if not for sure it will be the “good bye Aloha”. These Islands are small, everyone knows everyone.
The State of Hawaii is the legitimate government of the entire multi-racial public of Hawaii, and it has perfect title to all the public lands. There is no lease to expire, ever.
What is best is for all of us to be talking aloha to everyone in the islands, regardless of what their bloodline may be. These islands are small, and dividing people up on the basis of their race is a particularly evil thing given the high degree of mixture all of us hapas have.
Time will tell if you can let go of your racism, and embrace everyone in the islands, and the nation, and the world, as equals.